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HomeMy WebLinkAboutPD-146-92 THE CORPORATION OF THE TOWN OF NEWCASTLE DN: DEV-CHAR.GPA General Purpose and Administration Committee File # Res. -9~ Date: Monday, June 15, 1992 # #: PD-146-~ File #: PLN 20.1 Subject: DEVELOPMENT CHARGE BY-LAW 92-105 NOTICE OF APPEALS FILE: PLN 20.1 Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-146-92 be received for information. 1. BACKGROUND 1.1 Council at its meeting of March 23, 1992 approved two reports, one dated February 5, 1992 entitled "Town of Newcastle Development Charges Policy Report" and a second report dated July 15, 1991, entitled "Newcastle Hydro Electric Commission Development Charges Policy Report". within each document, policies related to development charges were recommended. 1.2 In consideration of the background reports and the public consultation process undertaken by the Town, Council subsequently approved By-law No. 92-105, being a by-law to impose development charges under the Development Charges Act. 1.3 Following the passage of By-law No. 92-105 and within the prescribed appeal period, three separate appeals were received through the Clerk's Department. 1.4 Section 4 (4) of the Development Charges Act states that any person or organization may appeal to the ontario Municipal Board by filing with the Clerk of the municipality a Notice :.'jl RECYCLED PAPER THIS lS f'llitHEOON RECYCLED PAPER REPORT NO.: PD-146-92 PAGE 2 of Appeal setting out the objection to the by-law and the reasons in support of the objection. 2. APPEALS 2.1 One of the appeals lodged was submitted on behalf of 671461 ontario Ltd. by Mr. Sam Gust. No reasons for the appeal were stated at the time of objection and to date no further documentation has been received. Staff included this appeal within the package forwarded to the ontario Municipal Board for the Board's disposition thereof. 2.2 The second appeal was lodged by the Oshawa Durham Home Builders Association. within the appeal itself, sixteen (16) reasons were listed in support of their objection. The Oshawa Durham Home Builders Association has indicated that the Town and the ontario Municipal Board will be advised of the firm selected to be Legal Counsel at such time as a retainer has been put forth. The Association also expressed hope that negotiations could take place between both parties so that adjustments could be made to the Charges without the cost of a hearing and they would be willing to respond to any Municipal invitation or initiative that would result in a reduction of the Development Charges. It is noted for the Committee's information the staff recently obtained a publication prepared by C.N. Watson & Associates Ltd., entitled "Development Charges Workshop Materials". This document contains a "Generic Appeals Employed by Several Homebuilder Associations" including sixteen (16) objections. These "generic" objections are identical to those submitted by the Oshawa Durham Home Builders Association. Our preliminary conclusion is that the objections filed by the Oshawa Durham Home Builders Association are not tailored specifically to the Town's By-law. 2.3 The third and final appeal was filed on behalf of Bramalea Limited by Thomson, Rogers, Barristers and Solicitors. In ') L) LI ~) ,_ r REPORT NO.: PD-146-92 PAGE 3 essence, their appeal stated that the Town's Development Charges Policy Report was flawed in that the Town failed to include or acknowledge Bramalea's capital infrastructure needs for their proposed development within the Town. This failure, would, in Bramalea's opinion, result in Bramalea being double charged for such items as park development and transportation matters. staff would note for the Committee's information that Bramalea Ltd. currently has applications before the Town and Region to amend the respective Official Plans to implement their proposed draft plan of subdivision within the former Village of Newcastle. 3. STAFF COMMENTS 3.1 Notwithstanding the appeals lodged the Development Charge Act stipulates that the Development Charge by-law as passed by Council is still in effect and that the municipality can continue to collect development charge levies as set out in By-law 92-105. Pending the ontario Municipal Boards' disposition of the appeals and determining the amount of development charge, it may be prudent for the Town not to use the development charge collected in the interim for major capital works in the event of roll back. This may have an implication in the preparation of the 1993 capital works program. This matter will be examined in detail in next year budget preparation. 3.2 Copy of all appeals are attached to this report for information purposes. Respectfully submitted, Recommended for presentation to the Committee J.-J(;~ <AL~ Lawrence E. Ko s Chief Administta Officer r Franklin Wu, M.C.I.P. Director of Planning and Development LDT*FW*df 5 June 1992 " r'r :' /") .J L~ ~, Oshawa. Durham Home Builders' Association f6 APR 14 \1.,55 AI1 '92 P.O. Box 7D4 Oshawa, Ontario L1H 7M9 (41 6)579-S.QSD April 13, 1992 Patti L. Barrie, Clerk ~ Larry Kotseff, Chief Administrative Office~ The Corporation of the Town of Newcastle 40 Temperance street Bowmanville, Ontario L1G 3AG RE: Notice of Appeal Aqainst Bv-Law 92-105, pursuant to the Development Charqes Act 1989. You recall that our Association attempted to persuade Council to modify the amount of the Development Charge during the several months prior to the enactment of By-Law 92-105, and you are aware that those efforts were unsuccessful. We believe that Council did not give sufficient weight to our position and, unfortunately, the matter must now be appealed. You understand that if no Appeal is lodged, our Association might lose its right to obtain refunds of any overpayments in the event of Decisions of th~ Ontario Municipal Board which might be beneficial to the Association's position. The Association will further advise the Town of Newcastle and the Ontario Municipal Board of the firm selected to be Legal Counsel at such time as a retainer has been put forth. We would hope that negotiations could take place between our Association and Council following OMB Decisions in other cases, so that adjustments could be made to the Charges without the cost of a Hearing. i tqj;:J.oP ..__._._.... etJI~~TION CLERK/LJ...............__..... : AC K. BY ...__...........__.........._.... ORIGI NAL TO:............_.._..._m C . ES TO: We are willing at any time to respond to any municipal or initiative that would result in a reduction of the Charge. ~:~'i') b/,' ~.J! f..-.. . ' Oshawa. Durham Home Builders' Association P.O. Box 704 Oshawa, Ontario L1H 7M9 (416)579-8980 April 13, 1992 Patti L. Barrie, A.M.C.T., Clerk Larry Kotseff, Chief Administrative Officer The Corporation of the Town of Newcastle 40 Temperance street Bowmanville, Ontario LIG 3AG NOTICE OF APPEAL IN THE MATTER OF the Development Charges Act, RSO 1989, Chp 58. AND IN THE MATTER OF By-law #92-105 of the Corporation of the Town of Newcastle, Regional Municipality of Durham. AND IN THE MATTER OF appeals to the Ontario Municipal Board pursuant to the said Development Charges Act. THE APPELLANT, the Oshawa-Durham. Home Builders' Association, appeals and objects to the said by-law of the Town of Newcastle respecting the imposition of development charges. The appeal and objection is based upon the following reasons: 1. The development charge and the lands and units to be charged is .based upon improper criteria and upon criteria which have been improperly calculated as to the prospective population, the number and types of units estimated to be constructed, the area and location of land which will be developed and the capi tal structures which wi II be created as a consequence thereof; 2. The development charge and what is to be charged has not been allocated properly, if at all, between existing users and land uses on the one hand, and what are identified as lands which are alleged to cause growth, on the other hand, within and wi thout the ten year period envisaged by the Act and the scheme of the by-law; or as between those lands and residents and the lands and residents which will be developed or who will come after the ten year period; i, J '7 J L. . - 2 - 3. The charge permits for the duplication of payment contrary to the said Act and contrary to the principles of commonwealth economics; .-the appl ication of the principl es of economics demands equity in the application of the proposal, which is absent from the. proposal;. 4. The cri teria used in the cal cuI ation of the charge are incorrect and result in an improper relationship between the need for capital construction and the provision therefor; 5. The all eged required capi tal construction is not in accordance with the said Act, the costs of which are excessive, are not related to growth, have not been approved as required by the Act or in accordance with either the letter or the intent of the Act and regulations, nor have they been properly allocated between existing and growth related users and lands; G. The said development charge is based upon services and standards of service exceeding those permitted in the said Act; 7. The said by-law does not envisage a proper accounting for the existing levy receipts over' the past years; it does not properl y account for the grants which the municipal i ty has received or will receive in the future; it fails to properly account for the service of debt; it charges future residential lands with costs which exceed those caused by the potential development of the said lands; 8. The development charge is based upon costs which are excessive and beyond those permitted by the definition of capital costs and services are provided by the said Act and regulations; 9. The by-law does' not exempt the appropriate land units and users and fails to account for the duplication of costs of affordable housing, other exemptions, including any transitional period, thereby permitting cost to be allocated to residential lands in excess of the appropriate costs so to be allocated; 10. The said By-Law fails to deal properly with front end agreements, the costs to be borne and how they are shared; 11. The By-Law fails to properly provide for the payment of charges for I and which has received draft pI an and other approvals but for which building permits have or have not been obtained; 'T< :") (,I JLU " . . -3- . 12. The charge calculation fails to properly account for all grants, subsidies and payments which the said Municipality has and will receive from other organizations and various levels of government; 13. The capital costs in the by-law include costs for services levied in agreements under section 50 and 52 of the planning Act and under section 219 of the Municipal Act and under the local Improvement Act; 14. The calculations involved in the said charge have not been based upon' the appropriate cost calculation methods; 15. In the calculation of the charge there is a failure to include the effect of the collection of charges without allowing for a return on the colI ections and there is an inadequate provision for the fact that some capital structures will not be required until well into the 10 year period, if at all, nor the fact that the life of the capital structures have not been property amortized, leaving residential growth lands to bear an excessive share of the estimated costs assumed to arise from such growth; IG. Because not all information is available upon which a properly constituted notice of appeal can be detailed the appellant may of necessity amend this notice of appeal when it appears to the appellant appropriate to do so, and additional material may be submitted from time' to time and as required prior to any Hearing scheduled by the Ontario Municipal Board. DATED at OSHAWA ONTARIO, this 13th day of April, 1992. Home Builders' ~l~ i-\ / I,}" .J .- " BARRISTERS AND SOLICITORS THOMSON, ROGERS /fl'J APR III ~15 PH '92 " / ~y ...er~'. j ~Q)J j l~ DELIVERED April 14, 1992 Clerk, Town of Newcastle 40 Temperance Street Bowmanville, Ontario L1C 3A6 Dear Sirs: Re: Bramalea Limited's Objection to Development Charge By-law 92-105 being the Development Charges By-law for the Corporation of the Township of Newcastle Our File No. 83/095 K.E. HOWIE, a.c. ow. GOUDIE, a.c. R.O. HOWIE, a.c. L.H. MANDEL, a.c. D.B. GREENSPAN, a.c. H. DAVID R.T. BEAMAN D.H. DIXON D.R. NEILL w.L.C. ROLAND S.J. MacDONALD P.O. SCHMIDT JW. STRYPE L.C. BROWN J.R. HOWIE A.AA FARRER R.M. BOGOROCH S.E. RAMSDEN M.S. WEISLEDER S.J.O'AGOSTlNO R.C. HALPERN R.E. REYNOLDS R.S. CASH L.H. KUNKA L.J. WOLANSKI V. KRKACHOVSKI M.L.Z. McDONALD M.J. HENRY O.R. TENSZEN A.A. PEACOCK J.J. WILKER G.J. FALCONERI O.E. STUART P. H. AUERBACH We are the solicitors for Bramalea Limited ("Bramalea") in connection with their proposed development located in the Town of Newcastle (the "'l'own ") at the area outlined in red on the attached Schedule "A". Please accept this letter as Bramalea's formal objection to the Town's Develop- rnent Charges By-law, being By-law No. 92-105. 1. Background Approximately 12 months ago, Bramalea made an ap- plication for an Official Plan Amendment, Rezoning and a Plan of Subdivision in order to permit a res- idential project which Bramalea calls the "Port of Newcastle Development". This proposal, involving a mix of single and multi-residential units, is situated on approximately 250 acres of land. This land is currently designated for residential purposes in the Regional Official Plan and the Official Plan for the Town of Newcastle. The applications currently before the Town would permit between 1,077 and 1,718 residential units. The potential Development Charges Levy, which may be realized by the Town as a result of the operation ~etf 030 SUITE 3100- 390 BAY STIU':ET TORONTO, ON'IARIO. CANADA MSH lW2 TEI.EI'IIONE 416-868-3100 FAX 416-868-3134 BARRISTERS AND SOLICITORS THOMSON, ROGERS " -2- of the Development Charges By-law with respect to this Development, may be as high as $7.8 Million Dollars. Beyond the significant levy value of Bramalea's development, Bramalea's Port of Newcastle proposal will provide significant benefits to the Town and the Region of Durham. Bramalea's development will provide the mechanism for the much needed replace- ment of the Graham Creek Water Pollution Control Plant which serves the Village of Newcastle. We understand that this old facility has reached its capacity. Without the proposed New Water Pollution Control Plant, the new growth predicted in the Development Charges Report cannot be accommodated. More importantly, the new Water Pollution Control Plant will ensure that discharges from the plant are consistent with the highest environmental standards. As well, Bramalea's development will facilitate important shoreline protection work designed to prevent erosion and provide an opportunity for public access to the waterfront which today does not exist in the Villa-ge of Newcastle. In a speech given on February 17, 1991, the Honourable Ruth Grier, the Ontario Minister of the Environment and Minister for the Greater Toronto Area, singled out Bramalea's Port of Newcastle Development, together with one other development, as an important oppor- tunity for a continuation of the waterfront trail designed to provide a green way linking the various elements of the GTA. Finally, the Port of Newcastle Development will provide the Town with a significant opportunity to obtain quality "green space". Bramalea's develop- ment provides the mechanism to place the sensitive valley land associated with Graham Creek and Wilmont Creek into public ownership. As well, the applications before the municipality show new park land in excess of the minimum requirement. ,~ ~) 31 ,/ BARRISTERS AND SOLICITORS THOMSON, ROGERS ! -3- 2. Grounds of Objection We have reviewed the Town's Development Charges By-law with our client and find it objectionable for the following reasons: (a) the Development Charges By-law and charge is premised upon the Town of Newcastle Development Charges Policy Report (the "Report"). This Report, is recited in the opening text of the by-law. Unfortunately, the Report is seriously flawed and has been designed in a manner which will result in significant unfairness to Bramalea and an inappropriate development charge in that; ( i) (ii) (iii) (iv) important infrastructure, required to service Bramalea's land and shown on Schedule 8-3 of the Town's Official Plan has not been included in the Ten-Year Capital Forecast; the Town's failure to acknowledge Bramalea's capital infrastructure needs in its calculation of its Development Charge will potentially result in an inequitable double charging to Bramalea on transportation matters; the Report fails to acknowledge new parks which are shown on Bramalea's applications for approval. This failure prejudices Bramalea in the provisioning of park land and the potential for credit for dedications beyond the statutory 5%. This failure may result in Bramalea being double charged for park items; the Ten-Year Capital Forecast is inadequate in that it does not suffi- ciently describe, in detail, proposed capital costs such as the $1 million dollars set aside for unspecified road r 7 '~i JJ/ BARRISTERS AND SOLICITORS THOMSON, ROGERS .. -4- construction and $1.1 million dollars set aside for "other parks"; (v) the Report has failed to properly identify that portion of the capital works which are non-growth related. For example, the amounts forecast ($1.4 million) for a Courtice library and ($5.5 million) for a Courtice community centre fail to recognize that a significant portion of the planned facilities are not attributable to new development; (vi) the Report fails to adequately account for existing funds held in the Town of Newcastle's Lot Levy Reserve; (vii) the Report fails to adequately account for capital grants anticipated for projects such as the Courtice community centre; (viii) the lack of justification for the timing of expenditures in the Report is inadequate in order to permit a rational calculation of interest on borrowing; and (ix) the methodology outlined in section 2.5.1 of the Report, for the calcula- tion of the ratio of growth related and non-growth related expenditures is unsound. (b) The By-law is inequitable in that it fails to provide for credits as envisioned by the Development Charges Act. (c) The calculations of the levy do not appear to conform to the Official Plan for the reasons set out in section (a)(i) herein. )1;' , 77 JJ) BARRISTERS AND SOLICITORS THOMSON, ROGERS " -5- Under the circumstances, we request that the By-law be rescinded and a new Development Charges By-law be enacted which is more equitable to Bramalea and which is calculated in accordance with the Develo ment C r es Act and regulations. Other- wise, we r uest that the matter be referred to the Ontario unicipalBoard for hearing. J. D'Agostino SJD/ps Enclosures " :-'1< L~ ,_ J SCHEDULE "A" ~ SUBJECT SITE LOT 31 LOT 30 LOT 29 LOT 28 - HIGHWAY N~ 401 Ml <4-r~ OtV~ 4-9/0 KEY MAP o tOO 200 300.. ~~ :s.o _ ,: 7 [~ ,) J~) . . ~PR 14 4 02 PH '92 .. 671461 Ontario Ltd. 182 Wel1ington st., Bowmanvi11e, Ontario LIC 1W3 Apr i 1 13, 199 2 Town of Newcastle 40 Temperance st. Bowmanville, Ontario Attention Clerk DELIVERED BY HAND Dear Sirs: RE:DEVELOPMENT CHARGE BYLAW 92-105 We wish to appeal the development charge bylaw and ask that our appeal be registered with the appropriate authorities. We wil1 be forwarding reasons for our appeal in short order. Yours truly ,~/ Sam Gust President 671461 Ontario Ltd. jjb